Today’s discussion reminds me of what is actually the biggest howler in Scalia’s infamous Herreraconcurrence:

I nonetheless join the entirety of the Court’s opinion,including the final portion, because there is no legal error in deciding a case by assuming arguendo that an asserted constitutional right exists, and because I can understand, or at least am accustomed to, the reluctance of the present Court to admit publicly that Our Perfect Constitution lets stand any injustice, much less the execution of an innocent man who has received, though to no avail, all the process that our society has traditionally deemed adequate. With any luck, we shall avoid ever having to face this embarrassing question again, since it is improbable that evidence of innocence as convincing as today’s opinion requires would fail to produce an executive pardon.

Scalia’s blithe certainty that passing the buck to governors and/or special committees will ensure that innocent people will not be executed had been conclusively disproven by the case of Cameron Todd Willingham. A governor and his death panel can proudly sign off on the execution of a man who is clearly legally innocent and almost certainly factually innocent. And not only will you not pay any political price for it, you can do this and be a credible candidate to be president of the United States, even if you go so far as to actually suppress a commission that threatens to reveal the truth. The Davis case is not as unambiguous, but further demonstates that parole boards will not be compelled to act even when a death sentence is known to rest entirely on evidence that is known to be unreliable.

All of this makes me very ambivalent about the pardon power. The Davis case is a perfect example of a case where executive intervention to (at a minimum) commute the death sentence is an appropriate remedy. But the problem is that in practice arbitrary processes aren’t particularly likely to identify the most suitable cases. This is especially true because the political incentives in states with the most procedurally flawed death penalties will tend to compel keeping the railroad to the death chamber running. And the presence of additional safeguards create the additional risk that it will make other appellate judges feel as comfortable about washing their hands of responsibility as Scalia does.

Comments (8)

Evasion of responsibility is a good description of the entire system. Jurors can believe that the prosecutors won’t bring the case unless they are sure, and besides, the judge or one of the oh so many appeals can fix any error. But prosecutors and judges can point to each other, and the appeals process, to absolve themselves. Appeals courts know that the case will ultimately go to the SC, plus there are pardons to address errors. And the SC knows that so many others have already looked at a case before it comes to them.

Given how deeply and fundamentally flawed the system is, it’s not surprising that so few wish to take responsibility for it.

Yes, but this is why pardon power is hardwired into common law. It worked for most of the history of it’s practice. The system says, “Yes, the law is an ass, but here is your safeguard”. The safeguard left when it became a political problem for opponents to demagogue upon somewhere around The Age of Crime in the late 70’s. Why this taboo still exists after an empirical drop in crime is a serious problem to solve.

In any process there will be substandard output. A manufactured item can go correctly through the stamping machine, the cutting machine, the painting machine and still at the end people in Quality control inspect and throw some out for being substandard. Certifying that an item went through a process in the proper manner is not the same as saying the output is acceptable.
The purpose of the legal system is not the rigamarole of process but correct verdict and if no one in the “quality control” Supreme Court not only is that one outcome incorrect, but the process never gets fixed to minimize future bad outcomes.

The problem is that executive clemency (federal and state) used to be considered a routine part of the justice system, and has now been converted to an extreme remedy used only in extraordinary cases.

Bush was disgracefully bad at pardons, and Obama is even worse. They virtually never pardon people, and on the rare occasions when they do, they squander their pardons on people from 20 or 30 years ago who don’t need them. Or on Marc Rich. Meanwhile, one of the few politicians willing to use it, Mike Huckabee, was demonized for it, helping to show why politicians avoid it.

As Rea syas below, one of the specific criticisms of Huckabee — who released a dangerous offender because of nutty conspiracy theories dredged up by professional Clinton haters — is perfectly valid. Pardoning Wayne DuMond is far worse than pardoning Marc Rich. He was, I agree, subjected to other criticism that was unfair.

one of the few politicians willing to use it, Mike Huckabee, was demonized for it

Oh, bullshit. Huckabee was criticized for buying into a crazed Clinton conspiracy theory to pardon a rapist and murderer who was surely guilty (but had the good taste to choose a Clinton relative as his victim), and who went on to commit more rapes and murders.

I know there were crazed conspiracy theories out there. I don’t know that Huckabee himself ever said anything about them. But even if he did pardon Dumond because he bought into those theories, he was attacked for far more than the Dumond pardon. He was attacked for other people who he pardoned who committed crimes, and he was attacked for his supposed overreliance on religious arguments (i.e., jailhouse conversions) in pardoning people.